Morgan & Anor v Egan

An adjournment application based on medical unfitness must be assessed flexibly and fairly. The court must examine the nature of the hearing, the party’s role, possible accommodations, and the quality and availability of medical evidence. The evidential guidance in Levy v Ellis-Carr and General Medical Council v Hayat is not a rigid rule requiring expert evidence in every case. Where further medical evidence may soon be available, the judge should consider obtaining it before proceeding. An appellate court may intervene where relevant matters were ignored, the discretion was exercised on an erroneous legal basis, or the resulting trial would be unfair under Article 6. A contested trial should rarely proceed in a party’s absence merely because the claim appears weak.

The claimants owned a property adjoining the defendant’s property. They disputed the boundary and each advanced claims based on adverse possession. The defendant also counterclaimed for damages.

The trial was listed before HHJ Sullivan. Shortly before and at the start of the trial, both claimants relied on medical conditions and sought an adjournment. The application was refused, counsel withdrew, and the trial proceeded in their absence. A renewed application, supported by further medical evidence, was not determined before the appeal.

The claimants appealed against the refusal to adjourn, alleging errors in the treatment of the medical and other evidence and bias. The central issues were whether the judge had lawfully exercised her case-management discretion and whether proceeding with the trial was fair.

1. Appeal. Permission was refused on the trial-bundle and bias grounds. The appeal was allowed on the grounds concerning the medical reasons for adjournment.
2. An appellate court must accord considerable deference to a case-management decision, but may intervene where the judge made an error of law, disregarded principle, misunderstood the facts, failed to consider a relevant matter, or reached a decision outside the generous ambit of reasonable disagreement: Teinaz v Wandsworth London Borough Council [2002] EWCA Civ 1040.
3. The court must also ensure that refusal of an adjournment does not make the hearing unfair for the purposes of Article 6 ECHR. Fairness does not necessarily require one predetermined outcome: Terkuk v Beresovsky [2010] EWCA Civ 1345; Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101.
4. The guidance concerning medical evidence in Levy v Ellis-Carr [2012] EWHC 63 (Ch) and General Medical Council v Hayat [2018] EWCA Civ 2796 was not a rigid test. The court had to assess the circumstances, including the difficulty of obtaining fuller evidence from medical professionals.
5. Where evidence raises a genuine possibility that a party cannot participate effectively, the court should consider reasonable accommodations and whether further medical enquiries or a fuller report can be obtained promptly. The judge failed to consider that possibility, failed adequately to assess the importance of Mr Morgan’s factual evidence, and treated his failure to instruct counsel to conduct the trial as a factor against adjournment when it was neutral.
6. The later report from Mr Wilson met the substantive requirements identified in Levy v Ellis-Carr. It established that Mr Morgan could not effectively participate in the trial and that remote attendance would not cure the difficulty. The error in refusing time to obtain that evidence was material. The evidence also satisfied the principles in Ladd v Marshall [1954] 1 WLR 1489.
7. The bias complaint had no merit. Earlier orders made by the judge, her measured comments about the claimants’ correspondence, and her description of an aggressive witness statement did not establish actual, presumed or apparent bias under Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451.
8. The matter was remitted to Maidstone County Court for trial before a different judge. The change of judge was required because the trial had already proceeded and judgment was imminent, not because of bias.

1. High Court (Queen’s Bench Division): Appeal allowed on the medical-adjournment grounds; permission refused on the trial-bundle and bias grounds. The matter was remitted to Maidstone County Court for retrial before another judge.
2. Maidstone County Court: HHJ Sullivan refused the application to adjourn the trial. The trial proceeded in the claimants’ absence, but judgment had not been given when this appeal was decided.